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06/14/2018

John McGinnis on Originalism and Alternatives
Michael Ramsey

At City Journal, John McGinnis: A Philosophy of Expedience.  From the introduction: 

Judicial appointments have proved the most successful aspect of the Trump presidency. Neil Gorsuch has begun where Antonin Scalia left off—as a committed originalist and eloquent textualist. Twenty-one appellate justices have been confirmed, a record at this point in a modern President’s term.  And, like Gorsuch, these appointees have been schooled in formalist methodologies of judging. Confident of and committed to their judicial philosophy, they will not shift leftward, as have many Republican appointees in the past. These judges are the fruit of institutions like the Federalist Society and of the work of scholars who have carefully formulated the ideas of originalism and textualism. The Left is enraged because the Trump judges will leave their mark for at least a generation. Thus a group, Demand Justice, has been formed to spend millions to assail the Trump appointees and tout progressive judges for the future.

But however much money they spend, judicial progressives face an existential difficulty: the Left has no philosophy of jurisprudence to compete with originalism. Yes, progressives embrace a familiar set of specific legal positions tied to their agenda. They believe that Citizens United—the case that gave corporations the same right to speak at election time as the media—is an abomination. They believe that the Constitution’s enumeration of powers does not prevent the federal government from regulating anything that it wants to regulate. They believe that progressive programs, be they Obamacare or antidiscrimination law, should never yield to claims of religious liberty, and that discrimination is generally fine, so long as it favors minorities—and majorities, too, as long as those are women.

In answering a question about the Supreme Court in a presidential debate with Trump, Hillary Clinton characteristically subordinated law to a grab bag of progressive policy objectives. “I feel that at this point in our country’s history, it is important that we not reverse marriage equality, that we not reverse Roe v. Wade, that we stand up against Citizens United, we stand up for the rights of people in the workplace.” In contrast, Trump provided a general legal standard based on a principle: “Interpret the Constitution the way the Founders wanted it interpreted.” This is a rough but handy description of originalism.

And from later in the essay:

The one exception to the Left’s constitutional stagnation is the band of liberals, led by Jack Balkin, who embrace originalism, arguing that it can be friendly to progressive goals. This is a welcome development for constitutional theory in the academy, because it puts the debate about the Constitution where it should be—on historical facts about its meaning, rather than on contemporary politics. Nevertheless, the liberal originalism boomlet seems unlikely to have much effect outside the academy. First, the Left has been demonizing originalism for so long that it can hardly now publicly embrace it. Indeed, the whole argument of the Left over the last century is that the law of the Founding was outdated, and today many leftists would add that it is also discredited, being the product of rich white males. Second, with due respect to these theorists, it’s unlikely that a fair reading of an essentially Whig Constitution can be contorted to reflect the progressive agenda today.

And in conclusion:

No victories are permanent in politics or jurisprudence. New left-leaning thinking about constitutionalism will at some point rise to a level worthy of being called a kind of jurisprudence, but for now, originalism has the intellectual power and public resonance. You can’t beat something with nothing.

There's much more of interest in the essay.  I would add an additional supporting point: as discussed a bit on this blog, left-leaning academics and commentators frequently use originalist arguments in support of particular outcomes when originalist arguments seem strongly to support them.  In making these arguments they typically ignore the jurisprudential debate over originalism, and often conveniently overlook their own theoretical opposition to originalism.  (See, for example, this post).

(Via Real Clear Politics).